Pesic v Northern Region Contracting Pty Ltd

[2010] VCC 172

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-08-05667

NADA PESIC	Plaintiff
v
NORTHERN REGION CONTRACTING PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3 and 4 December 2009
DATE OF JUDGMENT:	12 March 2010
CASE MAY BE CITED AS:	Pesic v Northern Region Contracting Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 0172

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134AB(37)(a) and (c) – spine – whether “serious injury” – psychiatric reaction – whether “severe”.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R C Forsyth	Patrick Robertson & Co
For the Defendant	Mr P D Elliott QC with	Minter Ellison
Ms S Ryan
HIS HONOUR:

Introduction

1 By way of Originating Motion dated 22 December 2008, Nada Pesic (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”) to bring common law proceedings to recover damages for an injury suffered by her on or about 25 May 2001 (“the injury”) during the course of her employment with Northern Region Contracting Pty Ltd (“the defendant”).

2          The plaintiff seeks such leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act.

3          The plaintiff was represented by Mr R C Forsyth of counsel and the defendant was represented by Mr P D Elliott QC and Ms S Ryan of counsel.

4          The application was heard over three days and the following evidence was adduced:

(a)	The plaintiff, Dr Ansari, the treating general practitioner, and Dr M Nathar, a medico-legal psychiatrist retained by the plaintiff, gave viva voce evidence and were cross-examined;
(b)	The plaintiff tendered the following evidence:

(i)      Register of Injuries Form dated 25 May 2001: (“Exhibit A”);

(ii)      Worker’s Claim Form dated 6 June 2001: (“Exhibit B”);

(iii)     Plaintiff’s Court Book: (“Exhibit C”);

(iv)     Summary of plaintiff’s taxation returns: (“Exhibit D”);

(v)     Index to the defendant’s Court Book: (“Exhibit E”).

(c)

The defendant tendered the following evidence:

(i)	Treating doctor’s report dated 29 June 2004: (“Exhibit 1”);
(ii)	Defendant’s Court Book: (“Exhibit 2”);
(iii)	Dr Ansari’s medical notes in relation to 8 May 2001 to 25 May 2001: (“Exhibit 3”) – wrongly referred to as “Exhibit F” in the transcript, at T140 L19);
(iv)	Notes of Ms Roglic: (“Exhibit 4”);
(v)	Photocopy of Dr Kaplan’s note dated 16 June 2004: (“Exhibit 5”).

Relevant Legal Principles

5          The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act: (see s.134AB(16)(a) of the Act).

6          The plaintiff relies on paragraphs (a) and (c) of the definition of “serious injury” contained in s.134AB(37) of the Act, although counsel for the plaintiff stated that the application was made “basically” under paragraph (c): (T4 L16). Those paragraphs read:

“serious injury means—

(a)	permanent serious impairment or loss of a body function;
...
(c)	permanent severe mental or permanent severe behavioural disturbance or disorder; …”

7          The part of the body said to be impaired for the purposes of paragraph (a) is the spine: (see T13 L18-20).

8          The mental or behavioural disturbance or disorder for the purposes of paragraph (c) is said to be “Chronic Adjustment Disorder”, “Anxiety and Depression” and/or “Post-Traumatic Stress Disorder”.

9          In order to succeed, the plaintiff must prove on the balance of probabilities that:

(a)	“the injury” suffered by her arose out of or in the course or due to the nature of her employment with the defendant on or after 20 October 1999: (see s.134AB(1) of the Act and Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622, at paragraph [11]);
(b)	“the injury” and the resultant impairment (paragraph (a)) and resultant mental or behavioural disturbance or disorder (paragraph (c)) must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”: (see Barwon Spinners (op cit), at paragraph [33]);
(c)	the “consequences” to the plaintiff of the spine impairment in relation to “pain and suffering” or “loss of earning capacity” must be “serious”, that is, “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”: (see s.134AB(38)(b) and (c) of the Act).
(d)	The “consequences” to the plaintiff of the mental or behavioural disturbance or disorder in relation to “pain and suffering” or “loss of earning capacity” must be “severe” – that is, “when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, be fairly described as being more than serious to the extent of being severe”: (see s.134AB(38)(b) and (d) of the Act.
(e)	The test for “serious” and “severe” is set out in paragraphs (b), (c) and (d) of s.134AB(38) of the Act and is sometimes referred to as the “narrative test”.

10        In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden (see s.134AB(19)(b) and (38)(e) of the Act) to establish:

(i)	That as at the date of hearing a loss of earning capacity of 40 per cent or more measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act: (see s.134AB(38)(e)(i)); and
(ii)	That after the date of hearing the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more: (see s.134AB(38)(e)(i).

11        In determining the application, the Court:

(a)	must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”: (see s.134AB(38)(h) of the Act);
(b)	must make the assessment of “serious injury” at the time the application is heard: (see s.134AB(38)(j) of the Act);
(c)	must give reasons which are extensive and complete as the Court will give on the trial of an action, and in so doing disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application: (see s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]–[92]);
(d)	notes that s.134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately.

In the event that a worker satisfies sub-paragraph (i) but not sub- paragraph (ii) of s.134AB(38)(b), the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s.134AB is entitled, as a “matter of statutory construction” to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”: (see Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, delivered by the Victorian Supreme Court of Appeal on 28 July 2009, and in particular at paragraphs [60]-[64]).

The Issues

12        Mr Elliott QC, senior counsel for the defendant, informed the Court that in relation to “the injury” being a “serious injury” within paragraph (a), the plaintiff suffered “some bruising and soft-tissue injuries in this incident and none of those injuries could come anywhere near being serious” (refer T14, L6-9), and in relation to the “injury” being a “serious injury” within the meaning of paragraph (c), there is difficulty identifying any “definable psychological or psychiatric condition” and in any event, such condition is not “severe” but is “mild”: (see T14 L12-28).

The Plaintiff and the Injury

13        The plaintiff adopted her two affidavits sworn respectively on 26 August 2008 (found at page 7 of Exhibit C) and hereinafter referred to as the “first affidavit” and on 24 November 2009 (found at page 13 of Exhibit C) and hereinafter referred to as the “second affidavit”.

14        The plaintiff is a fifty-eight year old (born 13 June 1951) married woman who was born in Serbia where she completed eight years of schooling. On leaving school, she performed home duties before migrating to Australia in 1996. She has two adult children – a daughter living about ten minutes’ car travel from her, and a son who has recently returned from Serbia with his fiancée, both of whom are living with the plaintiff at her premises (T79 L17-25).

15        On 25 May 2001, during the course of her employment with the defendant, the plaintiff suffered “the injury”, the circumstances of which she describes as follows:

“On or about 25 May 2001 whilst I was at the firstnamed defendant’s premises, I was walking to my place of work when I noticed a forklift carrying steel racks approaching around the corner. The forklift kept on coming towards me and hit me and pushed me between the steel racks and to the wall. I was jammed between the steel racks on the forklift and the wall. I was hit on the right side of my body and right hip. The left side of my body and the left hip were against the wall. I was very frightened, anxious and I felt pain in my right hip, left hip, left leg, left shoulder, neck and back. …”

(Refer paragraph 4 of the first affidavit (page 8 of Exhibit C))

16        Exhibits A and B tend to confirm the circumstances of the occurrence of the injury on 25 May 2001.

17        In particular, the plaintiff deposes in her first affidavit that:

(a)	She attended Dr Ansari, who prescribed medication and referred her for x-rays (see paragraph 5 of the first affidavit, page 8 of Exhibit C);
(b)	She was referred by Dr Ansari to the orthopaedic surgeon, Mr Michael Khan, on 19 June 2001, at which time she had pain in her neck, left shoulder, left arm, right shoulder, right arm, both hips, left leg and was also suffering from depression and anxiety, together with pain going down “my spine into my back” (see paragraph 6 of the first affidavit, page 9 of Exhibit C);
(c)	Dr Ansari referred her to a psychologist, Ms L Roglic, on 3 August 2001, after which she saw Ms Roglic on a regular basis over approximately two years (see paragraph 6 of the first affidavit, page 9 of Exhibit C);
(d)	After a “few months”, she went back to work for a “trial” of work in a meat shop but was unable to continue “due to the pain limitation of movement” (see paragraph 7 of the first affidavit, page 9 of Exhibit C);
(e)	Dr Ansari referred her to the rheumatologist, Dr Leslie Koadlow, on 24 April 2002. Dr Koadlow apparently injected her left shoulder on 30 April 2002 which did not assist her, and on 4 June 2002, Dr Koadlow gave the plaintiff a further injection into her left shoulder. At the time of seeing Dr Koadlow, the plaintiff was taking Zoloft for depression, together with Temazepam for sleeping and Tramal (see paragraph 8 of the first affidavit, page 9 of Exhibit C);
(f)	Her “strength and energy levels” are reduced and that she has “dreams and nightmares about being crushed by the forklift”. She also suffers from “insomnia” and feels “sad and nervous” (see paragraph 9 of the first affidavit, page 10 of Exhibit C);
(g)	She used to like knitting as a hobby but has difficulties in doing that now and has become “subdued and somewhat withdrawn”. She is “very fearful of being in a car” (see paragraph 10 of the first affidavit, page 10 of Exhibit C);
(h)	She continues to see Dr Ansari who prescribes “Panadeine Forte, Panamere (sic), Digesics, Nurofram (sic), Wolfram and Avanza” (see paragraph 11 of the first affidavit, page 10 of Exhibit C);
(i)	She has “pain in my neck which is there all the time and limits my movements” and also “pain in my back all the time together with my left shoulder”. Also, she has pain in her left hip, left knee and left leg (see paragraph 12 of the first affidavit, page 10 of Exhibit C);
(j)	She suffers a “psychological reaction in the form of anxiety, tension and loss of memory and concentration” (see paragraph 13 of the first affidavit, page 11 of Exhibit C);
(k)	Due to her “symptoms”, she has been unable to “return to my pre-injury work or any manual work”. She has difficulties at home performing “vacuuming, lifting” and “I do not clean the bath” (see paragraphs 14 and 15 of the first affidavit, page 11 of Exhibit C);
(l)	Prior to her injuries she liked “going out and seeing people and dancing” but as a result of the injury she has “great difficulty in dancing and socialising” and great difficulties going out to “picnics” (see paragraph 16 of the first affidavit, page 11 of Exhibit C).

18        In her second affidavit, the plaintiff deposes, in part, that:

(a)	She continues to see Dr Ansari regularly and that she takes one Avanza in the evening for her “depression”, three to four Nurofen a day for “pain” and when the pain is “bad” she takes two to four Panadeine Forte a day (see paragraph 2 of the second affidavit, page 13 of Exhibit C);
(b)	Otherwise she is having no other treatment (see paragraph 2 of the second affidavit, page 13 of Exhibit C);
(c)	She has not returned to any form of work, has not looked for work and believes that “realistically” she has no capacity for any work (see paragraph 3 of the second affidavit, page 13 of Exhibit C);
(d)	She continues to suffer “physical and mental symptoms” and she is always “in pain” and as a result continues to be “very anxious, irritable and depressed”, finding it hard to sleep and always feeling tired. She “forgets things easily and finds it hard to concentrate” (see paragraph 4 of the second affidavit, page 14 of Exhibit C);
(e)	She no longer knits as she does not have the “strength or patience to do it” and her husband and daughter do the “heavier household jobs” although she does “small jobs like washing some dishes and a bit of cooking”. She goes shopping with her husband, although he handles the shopping bags and manoeuvres the trolley, although she is capable of lifting small items from the shelves (see paragraph 5 of the second affidavit, page 14 of Exhibit C);
(f)	She visits her daughter occasionally but does not go out much because she does not feel “well enough”, although sometimes she goes out for a “short walk” and occasionally she may “visit friends and they visit us” (see paragraph 6 of the second affidavit, page 14 of Exhibit C);
(g)	Between June and September 2009, she travelled overseas to Belgrade and stayed with relatives to celebrate the engagement of her son. She had to take “a lot of medication while travelling and moved around the plane frequently to try and reduce the level of my stiffness and pain” (see paragraph 7 of the second affidavit, page 14 of Exhibit C).

19        The plaintiff was cross-examined by counsel for the defendant and gave the following pertinent evidence:

(a)	That prior to the injury she had gone to Dr Ansari on one day because she was “unhappy”, “upset” and under “stress because of the supervisor” (T17 L19-24);
(b)	She denied wanting to leave her employment before the injury as she “liked my job” (T18 L22-24);
(c)	Although the evidence is not completely clear, seemingly, she returned to work after the injury on one occasion when she worked one hour one day, and the next day she was supposed to work for two hours but only worked for an hour and a half (T23 L27-29). She could not do “any more than that” (T24 L1);
(d)	Since the early attempt at a return to work, she had not looked for a job over the last eight and a half years and asserted that she “can’t” (T24 L15-19);
(e)	Her husband also suffered injuries at the premises of the defendant – a shoulder and wrist injury – for which he was ultimately paid $105,000 in damages in December 2007 and is now on a Disability Pension (T25 L9- 13);
(f)	She can dust, prepare something to eat. “I try and do things, I’ve got to live” (T27 L26-28). She is able to do the housework but has to stop sometimes to take tablets and relax (T27 L29-31);
(g)	She is “always in pain, always. Everything hurts … can sit down for about half an hour before experiencing bad pain” (T28 L1-17).
(h)	In 2007 and 2009, she travelled to Serbia visiting relatives – the first time to visit a dying brother and on the second occasion to celebrate the engagement of her son (spending about ten weeks in Serbia). When in Belgrade she travelled to her family village and spent time with relatives (see generally T28 – T31);
(i)	The plaintiff presently experiences pain in her back, hips, legs to the knees, thighs to the knees, the whole of her neck up to her ears and her shoulders (more pain in the left shoulder than the right shoulder). The pain goes from her beltline up her back in between the shoulder blades and her neck (T76 L7 – T77 L6). At T76 L16, the plaintiff was asked:

“Q:	Would you say the pain is basically in most of your body?---
A:	Yes.”

(j)	She suffers from blood pressure for which she sometimes feels dizzy and experiences headaches. She is unable to knit because of her neck pain and does not have the strength or patience to perform that activity (T77 L19 – T78 L18);
(k)	She does walk in the park for up to ten to fifteen minutes, sometimes with the dog. She has friends in the Serbian community who visit her and she has coffee with them and sometimes she goes and visits them. Her son and his fiancée are living with them and sometimes she cooks for them (T79-82). She describes her condition as getting “worse”;
(l)	In relation to treatment, she was asked the following questions (at T83 L4FF):

“Q:	So the only treatment you are taking now is taking some tablets, is that right, for pain and anti-depression?---
A:	Yes
Q:	You don’t’ have the anti-depressants regularly do you?---
A:	No, only to help me sleep and for pain I take Panadeine Forte.
Q:	And sometimes you don’t take the Panadeine Forte because it upsets your stomach?---
A:	I take Panamax as I can’t open bowels when I take those.
Q:	So the Panamax, you can just buy that at the chemist?---
A:	Yes, can. Yes.
Q:	And the anti-depressant you take at night to help you sleep, is that right?---
A:	Yes, to help me sleep.
Q:	And sometimes you don’t take that?---
A:	Sometimes I don’t take them, I don’t sleep. Sometimes when I take them I can’t sleep or if I do sleep I wake up very quickly.”

(m) The plaintiff denied that she was not motivated to look for a job (T83 L 27).

20        The plaintiff also relies on an affidavit from her husband, Rade Pesic, sworn 24 November 2009 (see page 16 of Exhibit C). He deposes that prior to her injuries, his wife led a “full and active life” whereas there has been a “big change in my wife since the accident” with complaints of being “in a lot of pain” and “very restricted in what she can do”. The plaintiff has become “irritable and very argumentative” and “moody and tense, and finds it difficult communicating with others” (see page 17 of Exhibit C).

The Treatment of the Plaintiff

21        Dr Ansari has been the treating general practitioner of the plaintiff. In his evidence-in-chief, Dr Ansari stated that the histories, findings on examination and opinions expressed in his reports dated 1 September 2001 (page 18 of Exhibit C); 14 February 2002 (page 21 of Exhibit C); 1 May 2002 (page 24 of Exhibit C); 1 November 2002 (page 29 of Exhibit C); 13 November 2007 (page 33 of Exhibit C) and 5 October 2009 (page 35 of Exhibit C) are accurate.

22        Further, Dr Ansari gave evidence that in his “estimation” the plaintiff’s psychological problems are becoming “worse rather than better” (T36 L9). He has continued to provide analgesic treatment for her physical complaints which consist of neck pain, backache and pain in the legs (T36 L18-33). When he last examined her, she still had a “stiff neck and she also had a problem with her back, she complained of restriction of movements in the back” (T36 L24-28).

23        Dr Ansari was of the opinion that the “psychological condition” was the most significant condition now and he was further of the opinion that the plaintiff “could not do any work at all” as a result of that condition, leaving aside any present physical condition (T37 L1-13).

24        In his reports, Dr Ansari noted that the plaintiff presented to him on 25 May 2001 in “extreme pain and was very upset”. She was tender over the right hip, right thigh, right leg, right hand and left abdomen. When seen on 28 May 2001, the pain in the right hip and back “persisted” and there was an extreme haematoma of the right hip, back of the right thigh and bruising on the left side of the lower abdomen and pain going down the legs. The plaintiff stated at that time that she was in a lot of pain and was unable to sleep at night: (see generally page 18 of Exhibit C).

25        Dr Ansari arranged a plain x-ray examination of the lumbar spine which was reported as follows:

“Mild scoliosis is evident, convex to the left, at the thoraco-lumbar junction. The disc height is well maintained though small marginal osteophytes are shown, consistent with mild disc degenerative disease. The vertical bodies are intact, no focal bone lesion is evident. The S1 joints are normal.”

(see page 74 of Exhibit C).

26        From her early visits, Dr Ansari noted that the plaintiff was very upset and depressed and that she was having “nightmares about the accident as well”.

27        Dr Ansari has continued to treat the plaintiff over the years with referrals to Ms Roglic (psychologist), Dr Koadlow, (rheumatologist) and Dr Kaplan (psychiatrist) in May 2004. No report was available from Dr Kaplan but in his report dated 30 November 2007 (page 33 Exhibit C), Dr Ansari refers to Dr Kaplan opining that the plaintiff had developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of her chronic pain, her inability to work and her limitations imposed upon her by the pain. Further, Dr Kaplan was apparently of the view that the plaintiff had developed some Post- Traumatic Stress Disorder as a result of a “terrifying experience”.

28        In his latest report (page 35 of Exhibit C), Dr Ansari opined that there has been “no improvement” in the condition of the plaintiff and that she continues to complain of:

“neck pain, backache with pain radiating down her left leg,. She also complains of pain in her left shoulder, pain in both hips, headaches and suffers from anxiety/depression …”.

(see page 36 of Exhibit C).

29        Later in that report, Dr Ansari states that the plaintiff has had a lot of problems with her knees and with sleeping at night and in particular states:

“Treatment she has been receiving since my last report has remained the same. She takes Avanza for her depression, Nurofen for the pain and Panadeine Forte if and when required. Physiotherapy and hydrotherapy were ceased, as they were not helpful.

The future treatment would be mainly palliative as mentioned above.

The prognosis for this patient is poor in the long term. I do not think that she will ever be able to get back to work again, as she is unlikely to improve in the future.

The patient’s problem in her neck is of a permanent nature and is unlikely to improve and so is the pain in her lumbar spine, which is causing her back and hips to become stiff. These conditions are also of a permanent nature and are unlikely to improve in the future. The left shoulder pain is of a permanent nature as well. Her pain seems to fluctuate with the weather. She is not doing any work at present. The pain in her left leg has been a problem for her from the beginning as well as the pain in her back and hips.

The patient is extremely anxious and depressed and this has been diagnosed as a Post-Traumatic Stress Disorder, which is unlikely to improve in the future. She sustained a soft-tissue injury in the form of a musculo-ligamentous strain of the right hip, left hip and back with pain radiating down her dorsal spine into her left leg. This is causing her constant pain and has resulted in her being totally incapacitated for any type of work. Therefore, she is not employable in the workforce either part-time or full-time …”

(see page 36 of Exhibit C).

30        Under cross-examination, Dr Ansari gave the following pertinent evidence:

(a)

That at no time had any of the certificates that he had supplied to the plaintiff made reference to any psychological condition (T39 L5), although he considered that he had made a “mistake” by excluding such reference (T39 L26-28);

(b)

Dr Ansari completed the Treating Doctor’s Report dated 29 June 2004 in support of an application by the plaintiff for a Disability Pension (T41 L3- 8). In completing that form, Dr Ansari wrote that “anxiety, depression” and “neck pain” were “medical conditions which are generally well managed and cause minimal or limited impact on ability to function” (see part (e) of Exhibit 1). When queried about that, Dr Ansari stated:

“At that stage - in 2004 the patient problem of the basic muscle and ligament problem were quite incapacitating. And but therefore I put, anxiety, depression, just as an explain there that you see over the period the patient had become more depressed.” (sic)

(T42 L3-10)

(c)	The plaintiff has hypertension which can cause dizziness, headaches and affect her ability to concentrate (see generally T45);
(d)	The physical condition of the plaintiff has improved (T50 L24-25) as she was capable of travelling to Europe and undertaking a flight to Serbia. In relation to her mental state and flying, Dr Ansari stated:

“Mentally is very difficult to assess because she was a nervous type of person who was getting depressed but she wasn’t suicidal or something, she wasn’t one who’s going to cause some disruptive behaviour, so she’d be fit under the circumstances to travel.”

(T50 L30 – T51 L4)

(e)	The plaintiff had not been referred back to the psychologist for over six years (T52 L5-7) and that she has not been referred back to the psychiatrist, Dr Kaplan, from about June 2004 (T52 L17-20);
(f)	The plaintiff is prescribed 30 milligrams of Avanza and has been for a “period of time” (T53 L15-21);
(g)	The plaintiff suffered a soft-tissue injury in relation to her physical injuries and there was no “bony damage” to her knee, back or neck (T56 L8-9 and T57 L9-14);
(h)	Dr Ansari was asked a variety of questions in relation to her present condition. I refer to the following questions and answers:

“Q:	The inability to work and limitations imposed on her by the pain and she had developed a Post-Traumatic Stress Disorder as a result of her terrifying experience. That was in 2004. What is your understanding, Doctor, of her psychiatric condition today?---
A:	It’s difficult for me to assess because she complains of multiple things.
Q:	(HIS HONOUR): She complains of multiple things?---
A:	Yes, multiple symptoms and it’s hard to know really which is which, whether is problem – as far as I am concerned the soft-tissue injuries she had is stabilised now but the patient – but her mental condition has taken over the whole of her problems.” (sic)

(T61, L8-19)

“Q: But in a case of this nature where she suffered some bruising and soft-tissue one would have expected, Doctor, that that has gone away many many years ago, would you not?---

 A:  Possibly, yes.”

(T62 L21-24)

(i)      Dr Ansari was of the opinion that he would not have expected long-term problems with regard to her spine as a result of the injury (T64 L25-28). Many of her complaints were non-organic and he “could not find the actual cause of it” (T66 L21-24);

(j) Dr Ansari disagreed with the suggestion that the plaintiff had consciously set out to mislead people (T69 L4-8);

31        Dr Ansari referred the plaintiff to the orthopaedic surgeon, Mr M Kahn, who consulted with her, initially on 19 June 2001, and later on 13 July 2001.

In a report dated 9 February 2003 (page 37 of Exhibit C), Mr Kahn expresses the opinion that the plaintiff suffered “a jarring injury” to her neck and thoraco- lumbar spine and that she was still suffering some “pain in her joints” although the x-rays of the lumbar spine did not show any neurological signs (see page 39 of Exhibit C).

Mr Kahn was also of the opinion that she required treatment by a psychologist and a psychiatrist for her anxiety state and depression. Because she failed to work, the plaintiff was referred to Dr A Kostos, a consultant rheumatologist.

32        Dr Kostos examined the plaintiff on or about 15 August 2001, and in a letter back to Mr Kahn dated 15 August 2001, stated, in part:

“It is certainly quite possible that this woman could have had some local bruising as a result of the incident that she described but clearly the spread of pain all over her body will give cause for considerable concern and this concern is clearly well founded by the examination findings today. There clearly are a number of inconsistencies and discrepancies with features of abnormal illness behaviour and quite clearly the muscle strength that she demonstrated to me today is not consistent with weight bearing and therefore she is trying to embellish the physical findings.”

(see page 94 of Exhibit 2).

33        Dr Ansari also referred the plaintiff to the consultant rheumatologist, Dr Lesley Koadlow, who initially examined the plaintiff on 24 April 2002 and thereafter on 14 May 2002, 4 June 2002 and 11 June 2002. Dr Koadlow injected the left shoulder of the plaintiff on 30 April 2002 and later on 4 June 2002.

Dr Koadlow, in a report dated 28 August 2002 (see page 40 of Exhibit C), states, in part:

“I thought that this lady had compressive tissue injuries to the left shoulder and left femoral trochanter region and then a sudden muscle contraction of the body probably caused injuries in the cervical and thoracolumbar spine, which I regard as part of the accident. I think the psychological reactions remain so strong that it seems likely that she had Post Traumatic Stress Disorder caused by the accident. …”

(see page 41 of Exhibit C).

34        Dr Ansari also referred the plaintiff to the psychologist, Ms Linda Roglic, who saw her on about twenty four occasions from 3 August 2001 to 19 September 2003. When initially seen, Ms Roglic diagnosed the plaintiff to be suffering from “severe depression” but “over time” her symptoms of depression were alleviated but the pain has remained consistent: (see reports at pages 47 and 51 of Exhibit C).

Medico-Legal Reports

35        The solicitors for the plaintiff arranged for her to be medico-legally examined by the following doctors:

(a)

The general surgeon, Professor Kenneth Myers, on 6 March 2008 and 30 September 2009. In reports dated 11 March 2008 (see page 53 of Exhibit C) and 12 October 2009 (see page 59 of Exhibit C), Professor Myers expresses the opinion that the plaintiff had suffered “soft-tissue and ligamentous injuries” to her neck, back, left shoulder, left hip, left knee and right hip as a result of the incident on 25 May 2001. Furthermore, he is of the opinion that each of those injuries, considered separately, prevent her from performing any full-time or part-time work and also impacts on her enjoyment of life (see page 61 of Exhibit C);

(b)

The consultant psychiatrist, Dr M J Nathar, on 1 April 2008 and 17 April 2009. In his viva voce evidence, Dr Nathar adopted his two reports in respect of those examinations – reports dated 2 April 2008 (see page 62 of Exhibit C) and 18 November 2009 (see page 69 of Exhibit C);

In his last report, Dr Nathar stated, in part:

“Following the incident of the 25th May 2001 in which she was hit by a forklift in the course of working at Pacific Meats, she developed physical problems and secondary psychiatric reactions. She is still suffering from these injuries with a Chronic Pain Disorder and a Chronic Adjustment Disorder with anxious and depressed mood. However, I would consider that she no longer has a Post Traumatic Stress Disorder, being able to block off memories of the frightening incident.

Her psychiatric injuries would be consistent with the stated cause
with no other significant contributing factor.

In terms of treatment, she should continue with the Avanza anti- depressant medication for life. This seems to control her depression and would stop it getting worse. She probably would not benefit from any additional psychiatric or psychological treatment.

The overall prognosis is very poor. She has chronic physical stressors. Her Chronic Pain Disorder has a poor prognosis in any case. She has had psychiatric and psychological treatment without any significant improvement. She is likely to have long- term, permanent psychological deficits at around the current moderately severe state.”

Under cross-examination, Dr Nathar gave the following pertinent evidence:

(a)	Seventy five per cent of Dr Nathar’s practice is medico-legal work of which most is “plaintiff work” (see T94 L10-29);
(b)	Dr Nathar did not accept that if there was not some type of ongoing physical condition, she could not be experiencing a Chronic Adjustment Disorder (T96 L16-20).
Dr Nathar considered that the dosage of 30 milligrams of Avanza to be “therapeutic” (T130 L6-14).

Dr Nathar disagreed with various aspects of the opinions expressed in the reports of Dr Strauss.

36        The agents of the defendant arranged for the plaintiff to be medico-legally examined by the following doctors:

(a)	The general surgeon, Mr Anthony Buzzard, on 7 August 2001, 10 December 2001, 31 March 2008 and 17 June 2009;
(b)	The occupational physician, Dr Mary Wyatt, on 6 February 2002, 7 March 2008 and 25 June 2009;
(c)	The orthopaedic surgeon, Mr R Williams, on 27 February 2003;
(d)	The psychiatrist, Dr John Riley, on 10 September 2001 and 12 September 2001;
(e)	The psychiatrist, Dr Diane Neill, on or about 22 April 2003;
(f)	The psychiatrist, Dr Nigel Strauss, on 19 March 2008 and 6 October 2009.

37        When first examined on 7 August 2001, Mr Buzzard was of the opinion that the plaintiff most probably did suffer from “bruising as a result of the accident” and also she may have “suffered from a musculoligamentous strain to her back as a result of the accident in question” (see page 4 of Exhibit 2). However, he was of the opinion that from a “purely physical point of view, she had recovered from the effects of the accident in question. He thought that she may still be suffering from non-physical problems” (see page 4 of Exhibit 2).

When last seen on 17 June 2009, Mr Buzzard was essentially of the same opinion, although by that time he thought the plaintiff may have some degree of degenerative change in her cervical spine given her age, but such a condition would have no relationship to the incident in 2001. In particular, Mr Buzzard was of the opinion that from a purely physical perspective, she was capable of full employment (see page 19 of Exhibit 2).

38        When first examined on 6 February 2002, Dr Wyatt was of the opinion that the plaintiff was suffering some “chest wall bruising” and was fit for some type of work (see page 41-42 of Exhibit 2). When last seen on 25 June 2009, Dr Wyatt reports that:

“Excluding psychological or psychiatric consequences, I believe Ms Pesic’s reported pain and disability and incapacity did not derive from a physical or organic injury in her widespread pain. As stated above, following such an incident one could plausibly expect a specific area of the body to be impacted, but the fact that Ms Pesic’s problems are reported in such a widespread fashion suggests that this is not a physical or organic response to the described injury.”

(see page 53 of Exhibit 2)

39        In are reported dated 7 March 2003 Mr Williams expressed the opinion that the plaintiff most probably suffered contusions in the region of her pelvis and right lower limb and may have suffered a musculoligamentous strain in the lumbar spine. However, he notes that:

“She now has pain in most areas of her body, which is diffuse and non- specific and, in my view, not associated with any physical impairments in her joints.”

(see page 65 of Exhibit 2)

40        In his first report dated 11 September 2001, Dr Riley states in part::

“From a psychiatric view one would have to consider the accident circumstances as having been a somewhat frightening experience. In other words at face value some degree of nervous shock which in theory might transcribe into a psychiatric diagnosis of post traumatic stress disorder even if some of the criteria are somewhat delayed in onset. It does seem to me that the post traumatic stress disorder type symptoms are the main factor and seems to have been overshadowed by ongoing complaints of widespread pain perception.

There does not seem to [be] obvious evidence of conscious malingering so far as pain complaints are concerned and therefore a diagnosis of Pain Disorder … would seem appropriate and by definition, that means the motivation for the complaints of pain are outside of full conscious awareness. … However some degree of parallel conscious motivation for enhancement of her physical complaints would likely also exist.

…

With the adoption of the above psychological complex of symptoms, the ability for psychological counselling or use of psychotropic medication is often a rather futile exercise in terms of resolution of the psychiatric symptoms although it may offer some support to the person. Therefore if one accepts there is a genuine psychiatric reaction to the injury, it would be at the level of being a significant contributing factor from her employment which does seem to be the case.”

(see page 28 of Exhibit 2)

In a later report, Dr Riley was of the opinion that it was “unlikely that employment remains a significant contributing factor” on account of him doubting any ongoing symptoms of Post-Traumatic Stress Disorder and the advent of non-work-related factors causing a retreat into physical invalidity: (see page 39 of Exhibit 2).

41        In her report, Dr Neill was of the opinion that following a soft-tissue injury in May 2001, the plaintiff had developed “minor psychological symptoms” diagnosed as a Mild Pain Disorder. Also, Dr Neill was of the opinion that quite apart from the work injury, the plaintiff had “considerable difficulty in adjusting to leaving her family overseas”: (see pages 59-60 of Exhibit 2).

42        When first seen by Dr Strauss on 19 March 2008, Dr Strauss accepted that from a “purely psychiatric point of view” the circumstances of the injury must have been “frightening and upsetting” for the plaintiff. Furthermore, as a result of the incident, the plaintiff suffered “extensive bruising”. However, Dr Strauss goes on to say:

“… However since the accident she has complained of pain throughout

her body and I do not believe the pain is organically based.

This woman is either deliberately over exaggerating the extent of her problems or she has a pain disorder. It is always difficult in cases like this to know whether someone is consciously exaggerating problems or whether there is a genuine psychiatric condition.

In this case I accept that she may have a mild pain disorder associated with psychological factors but I do not believe that it is particularly severe and I suspect that this woman tends to over exaggerate her problems.”

(see page 74 of Exhibit 2).

Dr Strauss is of the opinion that a “lack of motivation” was stopping the plaintiff working and that she was capable of full-time alternative work but had little desire to work.

After the examination on 6 October 2009, Dr Strauss continued to be of the opinion that the plaintiff suffers from a “chronic mild pain disorder associated with psychological factors”. In particular, he states:

“In summary then she does have a mild psychiatric condition as a consequence of the accident in 2001 but it is not totally limiting her from employment from my perspective. In other words from a psychiatric point of view she is capable of full time alternative work but because of her lack of motivation she will never work again in my opinion and attempting rehabilitation would be fruitless.

…

From a purely psychiatric point of view she is capable of some employment.

She has a partial incapacity due to her work related psychiatric condition.

She is not capable of pre-injury employment.

She does have a so called functional overlay or in other words a pain disorder which is partly consciously derived and partly unconsciously derived in my opinion.”

(see pages 80-81 of Exhibit 2).

Vocational Assessments

43        The plaintiff also relies on vocational assessments undertaken by Evidex and contained in reports dated 11 April 2008 (page 77 of Exhibit C); 4 November 2009 (page 92 of Exhibit C) and 25 November 2009 (page 116a of Exhibit C).

44        The thrust of such reports is that there was no “suitable employment” available to the plaintiff when considering any injury to her spine.

Analysis of the Evidence

45        The plaintiff gave her evidence with a flat affect through the services of an interpreter. Although her credit remained largely intact, I formed the view that there was a tendency on her behalf to embellish her symptoms and complaints.

46        Dr Ansari is an important witness as he has been the treating general practitioner over the period from the occurrence of the injury to date, and for several years has been the only treating doctor. I found his evidence to be not particularly helpful as it largely consisted of a record of the complaints of the plaintiff, with little examination findings or analysis of the cause of her ongoing complaints.

47        Whereas Dr Ansari was of the opinion that the original injuries suffered by the plaintiff on 25 May 2001 were essentially of a soft-tissue nature, and from which he would not have expected long-term problems, he ultimately opined that the “problem” in her neck and lumbar spine is of a permanent nature. Such an opinion is also in the face of his own evidence that because of her multiple symptoms, it is hard to know really “which is which”.

48        I also found it difficult to accept the “estimation” of Dr Ansari that the plaintiff’s psychological problems were becoming “worse rather than better” when there had been no change in the type of treatment that she had been undertaking for psychological problems for many years – that is to say, no referral to a psychologist or psychiatrist and no change in her dosage of Avanza. Furthermore, such a situation has to be seen in the context where in 2004, Dr Ansari was apparently of the view that any “anxiety, depression” were generally well-managed and caused minimal or limited impact on her ability to function. I also find it strange that the medical certificates given by Dr Ansari at no time make reference to any psychological condition in the context that Dr Ansari now considered that such condition was the “most significant”.

49        I make the following findings:

(a)	The plaintiff suffered injury to her “spine” during the course of her employment with the defendant on or about 25 May 2001. I also accept that the circumstances of the incident would have been “frightening” to the plaintiff.
(b)	Such injuries consisted of contusions, bruising and probably some degree of soft-tissue damage to, relevantly, her spine.
(c)	To the extent that the plaintiff had organic symptoms from any injury to her spine, such symptoms were short-lived, and consistent with the evidence of Mr Buzzard, Dr Kostos, Dr Wyatt and Mr Williams, I am of the opinion that any ongoing complaints of pain cannot be explained adequately on an organic basis. Although Professor Myers expresses a different opinion, I expressly reject such opinion as there would appear to be no analysis whatsoever as to why there is an ongoing permanent organic condition as asserted by him.
(d)	The plaintiff may well have had some symptoms consistent with elements of Post-Traumatic Stress Disorder as a result of her fright at the time of the incident but such symptoms have now ceased consistent with the views of both Dr Nathar and Dr Strauss, the two most recent psychiatrists to examine the plaintiff.
(e)	I accept that the plaintiff probably has a “mild” ongoing Pain Disorder which, at least in part, is contributed to by the incident on 25 May 2001. In this respect, I accept the opinions of Dr Neill and Dr Strauss over the opinions of Dr Nathar.

I accept the opinions of Dr Neill and Dr Strauss over Dr Nathar on the basis that the activities undertaken by the plaintiff over the years are more consistent with the diagnosis proffered by Dr Neill and Dr Strauss.

(f)

Consistent with the view of Dr Strauss, I am of the opinion that the plaintiff, if motivated, would have the capacity to perform some work. In particular, I find that the plaintiff from the very early days after ceasing work, formed the view that she was “incapable” of any work and such a view more likely reflected issues of motivation, unhappiness with her previous employer, or, as suggested by Dr Neill, problems with settling in Australia with relatives overseas.

(g)

In particular, I make reference as to how counsel for the plaintiff put the case on behalf of his client. Mr Forsyth made clear at the outset, that the emphasis was on the paragraph (c) aspect rather than paragraph (a), and furthermore, made clear that his submission would be that the plaintiff was “totally and permanently incapacitated” as a result of her psychological problems. In such circumstances, he submitted the plaintiff would be entitled to a finding that she had satisfied paragraph (c) of the definition of “serious injury” both under the narrative and the extra requirements for pecuniary loss.

In support of such a view, it was argued by Mr Forsyth that Dr Strauss, in his report dated 6 October 2009, expressed the opinion that the plaintiff was “not capable of pre-injury employment”. On that premise, Mr Forsyth then relied on the material from the Evidex employment consultants (which he asserted was unchallenged) wherein the opinion was expressed that the plaintiff had no capacity for “suitable employment” within the meaning of the Act. In such circumstances, it was submitted, the plaintiff was “totally and permanently incapacitated” and had made out the requirements of paragraph (c) of the definition of “serious injury”.

I do not accept such submission because as the report of Dr Strauss states, the plaintiff “from a psychiatric point of view … is capable of full- time alternative work”. I am of the opinion that when Dr Strauss refers to the plaintiff not being “capable of pre-injury employment”, he was most probably referring to the employment with the defendant rather than the more often seen situation of a reference to a generic type of employment. Such a view may have been formed by Dr Strauss given that the plaintiff suffered the “frightening” episode with the defendant, although I note that Dr Strauss had also formed the view that any aspects of the Post-Traumatic Stress Disorder had ceased by then.

As already expressed in these reasons, I am of the opinion that consistent with the overall thrust of Dr Strauss’s opinion, the plaintiff is capable, from a psychiatric point of view, of some work if motivated to do so.

Conclusions

50        Accordingly:

(a)	I am not persuaded that the plaintiff has discharged her onus under paragraph (a) of the definition of “serious injury”. In particular, I am not satisfied that the plaintiff has suffered any permanent impairment of her “spine” and if there be any permanent impairment, such consequences are “serious” within the meaning of the narrative test.
(b)	I am not persuaded that the plaintiff has discharged her onus under paragraph (c) of the definition of “serious injury”. Although accepting that she may well have a mental or behavioural disturbance, such condition is not “severe” within the meaning of the narrative test. In particular, I re- state that I accept the opinions of Dr Strauss, in particular, and reject any submission to the effect that the plaintiff is totally and permanently incapacitated as a result of any mental condition.
(c)	The application is dismissed and I will hear the parties on the question of costs.

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